EXHIBIT 99.2
EQUITY ONE, INC.
COMMON STOCK PURCHASE AGREEMENT
October 28, 2002
EQUITY ONE, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is entered into as
of October 28, 2002, by and between Equity One, Inc., a Maryland corporation
(the "Company"), and each of the several Purchasers set forth on Schedule I
attached hereto (each a "Purchaser" and collectively, the "Purchasers").
R E C I T A L S
WHEREAS, the Purchasers desire to purchase shares of the Company's common
stock, par value $.01 per share ("Common Stock"), such purchases to be made in a
private placement the initial closing of which is to occur substantially
simultaneously with the closing of the merger of IRT Property Company, a Georgia
corporation ("IRT"), with and into the Company or an affiliate thereof (the
"Merger") pursuant to the Agreement and Plan of Merger between IRT and the
Company of even date herewith (the "Merger Agreement");
WHEREAS, the Company desires to issue and sell the Shares (as defined
below) to the Purchasers on the terms and conditions set forth herein to fund a
portion of the cash consideration payable pursuant to the Merger Agreement and
for other corporate purposes;and
WHEREAS, the Company and the Purchasers are entering into a Registration
Rights Agreement (as defined below) simultaneously with the execution hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. Agreement to Sell and Purchase.
1.1 Sale and Purchase of Common Stock. Subject to the terms and conditions
hereof, the Company hereby agrees to issue and sell to each Purchaser and each
Purchaser, severally and not jointly, agrees to purchase from the Company, at
the Closing, up to the number of shares of Common Stock set forth opposite such
Purchaser's name on Schedule I attached hereto (the maximum number of shares as
to which each Purchaser is hereby committed to purchase, being referred to
herein as such Purchaser's "Maximum Amount"), at a per share purchase price of
the sum of $13.30 plus the Adjustment Amount (as defined below), such sum being
referred to as the "Purchase Price". The "Adjustment Amount" shall be the
product of (x) the quotient of (i) the excess of the number of outstanding IRT
shares of common stock being converted into Company Common Stock in the Merger
over 50 percent of all of the shares of IRT Common Stock outstanding immediately
prior to the effectiveness of the Merger, divided by (ii) 2 million multiplied
by (y) $ .20; provided, however, that the Adjustment Amount shall not exceed $
..20. The shares of Company Common Stock to be purchased hereunder are referred
to as the "Shares". Unless waived by the Company in its sole and absolute
discretion, each Purchaser's obligations hereunder shall not be affected by the
failure of any other Purchaser to perform its obligations hereunder.
Notwithstanding anything contained herein to the contrary, a Purchaser may
assign its rights to purchase Shares hereunder to any affiliate (as defined
pursuant
to Rule 405 under the Securities Act (as defined below)) of such Purchaser,
provided that no such assignment shall release the Purchaser from its
obligations hereunder and provided further that such assignment is to an entity
as to which the representations and warranties set forth in Section 4.3 below
shall be true.
1.2 Hart-Scott-Rodino Compliance. Notwithstanding anything else in this
Agreement, if the sale and issuance of the Shares is subject to the premerger
notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), it shall be a condition to the Closing that
any waiting period under the HSR Act applicable to the purchase of the Shares
shall have expired or been terminated and any approvals required thereunder
shall have been obtained. The parties shall cooperate in filing premerger
reports promptly after the date hereof (and in any event not later than ten (10)
days after the date hereof), and in taking all steps reasonably necessary to
obtain early termination of any applicable HSR Act waiting periods.
1.3 Stock Splits. In the event of any stock split, combination,
reclassification or stock dividend with respect to the Company's Common Stock
after the date hereof, the number of Shares to be purchased thereafter and the
Purchase Price in respect thereof shall be appropriately and proportionately
adjusted.
2. Closing, Delivery and Payment. (a) Subject to the terms of Section 5
hereof, the initial closing of the sale and purchase of the Shares under this
Agreement (the "Initial Closing") shall take place substantially simultaneously
with the closing of the Merger (the date of such closing shall be referred to
herein as the "Initial Closing Date"). As promptly as practicable but in any
event, not later than 9:00 a.m. on the Initial Closing Date, the Company shall
notify each Purchaser of the aggregate number of Shares which the Company shall
issue and sell at the Initial Closing (the "Initial Closing Shares") and the Pro
Rata Portion (as defined in paragraph (d) below) of the Initial Closing Shares
which each Purchaser shall be required to purchase and pay for at the Initial
Closing. The Initial Closing Shares shall be determined by the Special Committee
of the Board of the Company's Board of Directors (the "Special Committee") in
its sole discretion but, in any event, shall not be less than 3 million Shares.
(b) If the number of Initial Closing Shares is less than the aggregate
Maximum Amount of all Purchasers (the "Aggregate Maximum Amount"), then each
Purchaser shall purchase and pay for and the Company shall issue and sell to
such Purchaser at the Subsequent Closings (as defined below), such Purchaser's
Pro Rata Portion of a number of Shares equal to the excess of the Maximum
Aggregate Amount over the number of Initial Closing Shares (such excess being
referred to as the "Excess Shares"); provided, however, that the Special
Committee shall have the right, exercisable until the consummation of the
Initial Closing, in its sole discretion, to reduce the total number of Excess
Shares to a lesser amount provided that the total number of Shares to be issued
to the Purchasers hereunder (including the Initial Closing Shares) shall not be
less than an aggregate of 6 million Shares. The Excess Shares shall be issued
and paid for in two equal installments at closings to be held (each, a
"Subsequent Closing") on October 15, 2003 and April 15, 2004 or the next
Business Day thereafter if any such day is not a
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Business Day; it being understood that if pursuant to the Merger Agreement, the
Company's dividend payment cycle is set at other than the first day of the last
month of each calendar quarter then the date of the Subsequent Closings shall be
adjusted accordingly. For purposes, hereof "Business Day" means any day on which
commercial banks in the United States and Israel are open.
(c) At the Initial Closing and each Subsequent Closing (the Initial Closing
and the Subsequent Closings being collectively referred to herein as the
"Closings"), subject to the terms and conditions hereof, the Company will
deliver to each Purchaser a certificate representing the number of Shares to be
purchased by such Purchaser at such Closing against payment by or on behalf of
such Purchaser of the aggregate Purchase Price for such Purchaser's Shares by
wire transfer to an account designated by the Company, or by such other means as
shall be mutually agreeable to Purchaser and the Company. Each Closing shall
take place at the offices of Greenberg Traurig, P.A., 1221 Brickell Avenue,
Miami, Florida 33131 or such other place as the Company and each Purchaser may
agree.
(d) For purposes of each Closing, each Purchaser's "Pro Rata Portion" means
an amount of Shares equal to the product of (x) the aggregate number of Shares
to be purchased at such Closing, multiplied by (y) a fraction, the numerator of
which is the Maximum Amount of such Purchaser and the denominator of which is
the Aggregate Maximum Amount.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that, as of the date hereof, the representations
and warranties set forth in the Merger Agreement, as modified, amended and
qualified by the Company Disclosure Schedule (as defined in the Merger
Agreement), are true and correct to the extent set forth therein, and
incorporated by reference in their entirety herein. Except as set forth in the
Schedule of Exceptions attached hereto as Annex 1, the Company hereby
additionally represents and warrants to each Purchaser as of the date hereof as
follows:
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland. The Company has full power and authority to own and
operate its properties and assets, and to carry on its business as presently
conducted. The Company is duly qualified, is authorized to do business and is in
good standing as a foreign corporation in all jurisdictions in which the nature
of its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those jurisdictions, in the aggregate, in
which failure to do so would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its Subsidiaries
taken as a whole.
3.2 Authorization; Binding Obligations. All corporate action on the part of
the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Registration
Rights Agreement referred to in Section 5.1(f) below, for the sale and issuance
of the Shares pursuant hereto and for the performance of the Company's
obligations hereunder and thereunder has been taken or will be taken prior to
the
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Closing. Each of this Agreement and the Registration Rights Agreement, when
executed and delivered, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
moratorium, and other laws affecting creditors' rights generally and subject
further to general principles of equity. At the time of the Closing, the sale of
the Shares will not be subject to any preemptive rights or rights of first
refusal that have not been properly waived or complied with. When issued in
compliance with the provisions of this Agreement, the Shares will be validly
issued, fully paid and nonassessable, and will be free of any liens, claims,
encumbrances or other restrictions other than restrictions on transfer under
this Agreement and under state and/or federal securities laws as set forth
herein or as otherwise required by such laws at the time a transfer is proposed
or any liens, claims, encumbrances or other restrictions entered into by any
Purchaser.
3.3 Compliance With Other Instruments. The execution, delivery and
performance of and compliance with this Agreement and the Registration Rights
Agreement, and the issuance and sale of the Shares pursuant hereto will not (i)
materially conflict with, or result in a material breach or violation of, or
constitute a material default under, or result in the creation or imposition of
any material lien, claim, encumbrance or restiction, (ii) violate, conflict with
or result in the breach of any material terms of, or result in the material
modification of, any material contract or otherwise give any other contracting
party the right to terminate a material contract, or constitute (or with notice
or lapse of time both constitute) a material default under any material contract
to which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject or (iii) result in any violation, or be in
conflict with or constitute a default under any term, of its charter or bylaws.
3.4 Litigation, etc. There is no action, suit, proceeding nor, to the
Company's knowledge after due inquiry, any investigation pending or currently
threatened against the Company, that questions the validity of this Agreement,
the Registration Rights Agreement or the Merger Agreement and the other
agreements contemplated thereby or the right of the Company to enter into such
agreements.
3.5 Governmental Consent, etc. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Company is required in connection with the valid execution, delivery, and
performance of this Agreement or the Registration Rights Agreement, or the
offer, sale or issuance of the Shares, or the consummation of any other
transaction contemplated by this Agreement except certain filings as may be
required under the HSR Act, if any, the Securities Act of 1933, as amended (the
"Securities Act"), and state securities laws and regulations, which filings will
be made timely in accordance with the applicable law or regulation.
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4. Representations and Warranties of Each Purchaser.
Each Purchaser, severally as to itself, hereby represents and warrants to
the Company as follows:
4.1 Requisite Power and Authority. Such Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement and the Registration Rights Agreement and to carry out the provisions
of this Agreement and the Registration Rights Agreement. All action on such
Purchaser's part required for the lawful execution and delivery of this
Agreement and the Registration Rights Agreement has been or will be effectively
taken prior to the each Closing as applicable. Each of this Agreement and the
Registration Rights Agreement, when executed and delivered, will be a valid and
binding obligation of such Purchaser, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights and (ii) general principles of equity that restrict the
availability of equitable remedies.
4.2 Consents. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of such Purchaser required in
connection with the consummation of the transactions contemplated in this
Agreement and the Registration Rights Agreement (other than the securities
filings contemplated thereby) have been or shall have been obtained prior to and
be effective as of the Closing.
4.3 Investment Representations. Such Purchaser understands that the Shares
have not been registered under the Securities Act. Such Purchaser also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon such
Purchaser's representations and warranties as follows:
(a) Purchaser is an Accredited Purchaser. Such Purchaser represents that
such Purchaser is an "accredited investor" within the meaning of Rule 501(a) of
Regulation D under the Securities Act or a "qualified institutional buyer"
within the meaning of Rule 144A(a)(1) under the Securities Act. A true and
complete copy of such Purchaser's most recent available financial statements
have been or prior to the Initial Closing will be made available to the Company.
(b) Purchaser Bears Economic Risk. Such Purchaser must bear the economic
risk of this investment indefinitely unless its Shares are registered pursuant
to the Securities Act, or an exemption from registration is available. Except as
provided in the Registration Rights Agreement, such Purchaser understands that
it will have no registration rights with respect to its Shares. Such Purchaser
also understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow such Purchaser to transfer all or any portion of its
Shares under the circumstances, in the amounts or at the times such Purchaser
might propose.
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(c) Acquisition For Own Account. Such Purchaser is acquiring its Shares for
such Purchaser's own account for investment only, and not with a view towards
their distribution within the meaning of the Securities Act.
(d) Purchaser Can Protect Its Interests. Such Purchaser represents that by
reason of its, or of its management's, business or financial experience, such
Purchaser has the capacity to evaluate its investment in the Shares and the
transactions contemplated in this Agreement. Such Purchaser is not a
corporation, trust or partnership specifically formed for the purpose of
consummating these transactions.
(e) Company Information. Such Purchaser has had an opportunity to discuss
the Company's business, management and financial affairs with directors,
officers and management of the Company and has had the opportunity to review the
Company's operations and facilities. Such Purchaser has also had the opportunity
to ask questions of and receive answers from, the Company and its management
regarding the terms and conditions of this investment.
4.4 Legends. Each certificate representing the Shares may be endorsed with
the following legends:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
are "restricted securities" as defined in Rule 144 promulgated under the
Act. The securities may not be sold or offered for sale or otherwise
distributed except (i) in conjunction with an effective registration
statement for the shares under the Act (including pursuant to a
Registration Rights Agreement), or (ii) in compliance with Rule 144 or
(iii) pursuant to an opinion of counsel to the corporation that such
registration or compliance is not required as to such sale, offer or
distribution."
The Company need not register a transfer of any Shares, and may also
instruct its transfer agent not to register the transfer of any Shares, unless
the conditions specified in the foregoing legend are satisfied.
4.5 Removal of Legend and Transfer Restrictions. Any legend endorsed on a
certificate pursuant to subsection 4.4 and the stop transfer instructions with
respect to such Shares shall be removed and the Company shall issue a
certificate without such legend to the holder thereof if such legend may be
properly removed under the terms of Rule 144 promulgated under the Securities
Act or if such holder provides the Company with an opinion of counsel for such
holder, reasonably satisfactory to legal counsel for the Company, to the effect
that a sale, transfer or assignment of such Shares may be made without
registration.
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5. Conditions to Closing.
5.1 Conditions to Each Purchaser's Obligations at each Closing. Each
Purchaser's obligation to purchase its Shares identified in Section 1.1 of this
Agreement at each Closing are subject to the satisfaction, at or prior to the
Closing, of the following conditions:
(a) Closing of Merger. (i) In the case of the Initial Closing, all
conditions precedent to the consummation of the Merger shall have been satisfied
or waived and the Initial Closing shall occur substantially simultaneously with
the effectiveness of the Merger. (ii) In the case of each Subsequent Closing,
the effectiveness of the Merger.
(b) Representations and Warranties True; Performance of Obligations. The
representations and warranties made by the Company in Subsections 3.1 through
3.5 shall be true and correct in all material respects (except to the extent
qualified by materiality, in which case they shall be true and correct) as if
made on the date of such Closing other than those representations and warranties
made as of a specific date which will be true and correct in all material
respects as of any such date, and the Company shall have performed and complied
in all material respects with all obligations and conditions herein required to
be performed or complied with by it on or prior to the Closing and shall have
delivered an officer's certificate as to the matters set forth in this Section
5.1(b).
(c) Legal Investment. At the time of such Closing, the sale and issuance of
the Shares shall be legally permitted by all laws and regulations to which such
Purchaser and the Company are subject.
(d) Consents, Permits, and Waivers. The Company shall have obtained any and
all authorizations, approvals, consents, permits and waivers necessary or
appropriate for consummation of the transactions contemplated by this Agreement
(except for such as may be properly obtained subsequent to the Closing, and such
items shall be effective on and as of the Closing).
(e) Transfer Agent Instructions. The Company shall have delivered to such
Purchaser a copy of a letter to the Company's transfer agent, dated the Closing
Date, and instructing the transfer agent to issue the Shares.
(f) Registration Rights. The Registration Rights Agreement dated as of the
date hereof between the Company and the Purchasers (the "Registration Rights
Agreement") shall be in full force and effect.
(g) Minimum Price. (A) the 30-Day Average Trading Price is not less than
$12.06 and (B) the Three Day Average Trading Price for the three consecutive
trading days ending on (and inclusive of) the Measurement Date (as defined
below) is not less than $11.00. For purposes hereof, "30-Day Average Trading
Price" shall mean the weighted average trading price per share of the Company
Common Stock as quoted on the New York Stock Exchange for all transactions
during the 30 trading days ending on (and inclusive of) the fourth business day
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immediately preceding the scheduled date of the IRT shareholders' meeting in
respect of the Merger (the "Measurement Date"). "Three Day Average Trading
Price" shall mean the weighted average trading price per share of the Company
Common Stock as quoted on the New York Stock Exchange for all transactions
during the three trading days ending on (and inclusive of) the Measurement Date.
(h) Opinion of Counsel. The Company shall have caused its counsel,
Greenberg Traurig, P.A., to have delivered an opinion, addressed to each of the
Purchasers, in form and substance reasonably acceptable to Purchasers' counsel,
with respect to the matters described in Sections 3.1 through 3.3 and Section
3.5 hereof.
5.2 Conditions to Obligations of the Company. The Company's obligations to
issue and sell Shares at each Closing is subject to the satisfaction, on or
prior to such Closing of the following conditions:
(a) Closing of Merger. (i) In the case of the Initial Closing, all
conditions precedent to the consummation of the Merger shall have been satisfied
or waived and the Initial Closing shall occur substantially simultaneously with
the effectiveness of the Merger. (ii) In the case of each Subsequent Closing,
the effectiveness of the Merger.
(b) Representations and Warranties True. The representations and warranties
made by Purchaser in Section 4 hereof shall be true and correct in all material
respects at the date of such Closing, with the same force and effect as if they
had been made on and as of said date.
(c) Performance of Obligations. Each Purchaser shall have performed and
complied in all material respects with all agreements and conditions herein
required to be performed or complied with by such Purchaser on or before such
Closing.
(d) Payment of Purchase Price. Each Purchaser shall deliver to the Company
payment for its Shares to be acquired by such Purchaser in the amounts set forth
herein.
6. Rule 144 Reporting.
With a view to making available to each Purchaser the benefits of certain
rules and regulations of the Commission which may permit the sale of the Shares
to the public without registration, the Company agrees at all times after the
Closing to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act ("Rule 144");
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
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(c) so long as such Purchaser owns any Shares, to furnish to such Purchaser
within a reasonable time upon a written request by such Purchaser, a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and of the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the
Company as such Purchaser may reasonably request in complying with any rule or
regulation of the Commission allowing such Purchaser to sell any such securities
without registration and shall cause its counsel promptly to provide appropriate
legal opinions to the Company's transfer agent in connection with a proper sale
of Shares pursuant Rule 144.
7. Miscellaneous
7.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Florida without regard to the principles of conflict of
laws thereof.
7.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Purchaser and the closing of
the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument, except as
expressly provided otherwise in such certificate or instrument.
7.3 Successors and Assigns. This Agreement and the rights granted hereunder
may not be assigned, sold, transferred, pledged, hypothecated or otherwise
disposed. Notwithstanding any other provision contained herein, the Shares may
not be sold, transferred, pledged, hypothecated or otherwise disposed of except
as follows: (a) to a person who, in the opinion of counsel to the Company, is a
person to whom the Shares may legally be transferred without registration and
without the delivery of a current prospectus under the Securities Act with
respect thereto and then only against receipt of an agreement of such person to
comply with the provisions of this Agreement with respect to any resale or other
disposition of such securities; or (b) to any person upon delivery of a
prospectus then meeting the requirements of the Securities Act relating to such
securities and the offering thereof for such sale or disposition, and thereafter
to all successive assignees. The Company agrees that Shares may be pledged by
any Purchaser to a Bona Fide Pledgee (as defined in the Registration Rights
Agreement). This Agreement shall be binding upon and inure to the benefit of the
Company, each Purchaser and their respective successors and permitted assigns.
7.4 Severability. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, such provision shall, to the extent practicable, be
modified so as to make it valid, legal and enforceable and to maintain as nearly
as practicable the intent of the parties, and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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7.5 Amendment and Waiver.
(a) Any amendment of this Agreement shall only be binding upon the parties
hereto executing such amendment.
(b) The obligations of the Company and each Purchaser under this Agreement
may be waived only with the written consent of the parties hereto to whom such
obligations are owed.
(c) Except to the extent provided in this Section 7.5, neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated, except by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
(d) Any amendment or waiver effected in accordance with this Section 7.5
shall be binding upon any future holder of some or all of the Shares.
7.6 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given and received
(a) upon personal delivery, (b) on the fifth day following mailing sent by
registered or certified mail, return receipt requested, postage prepaid, (c)
upon confirmed delivery by means of a nationally recognized overnight courier
service or (d) upon confirmed transmission of facsimile addressed: (i) if to a
Purchaser, at such Purchaser's address as set forth Schedule I attached hereto,
or at such other address as such Purchaser shall have furnished to the Company
in writing and such Purchaser's counsel as set forth on such Schedule I or (ii)
if to the Company, at its address as set forth on the signature pages of this
Agreement, or at such other address as the Company shall have furnished to
Purchaser in writing.
7.7 Expenses. The Company shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement, and each Purchaser shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement; provided, however, that if the Merger is consummated and the sum of
the Initial Closing Shares and the Excess Shares (as determined by the Special
Committee as set forth above), such sum being referred to as the "Sold Shares",
is less than the Aggregate Maximum Amount, then the Company shall reimburse each
of the Purchasers their respective Pro Rata Portion of their documented out of
pocket expenses up to an amount not to exceed 1 percent of the product of (x)
the Purchase Price multiplied by (y) the excess of the Aggregate Maximum Amount
over the Sold Shares, such payment to be made at the last Subsequent Closing.
7.8 Attorneys' Fees. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and legal costs in connection therewith.
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7.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
7.11 Broker's Fees. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 7.11 being untrue.
7.12 Termination. This Agreement shall terminate upon any valid termination
of the Merger Agreement.
7.13 Subsequent, Consents, Permits and Waivers. The Company shall obtain
promptly after any Closing all authorizations, approvals, consents, permits and
waivers that are necessary or applicable for consummation of the transactions
contemplated by this Agreement and that were not obtained prior to such Closing
because they may be properly obtained subsequent to such Closing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
Company:
Equity One, Inc.
1696 N.E. Miami Gardens Drive
N. Miami Beach, FL 33179
By: /s/ Chaim Katzman
Purchasers:
Silver Maple (2001), Inc.
By: /s/ Chaim Katzman
M.G.N. (USA), Inc.
By: /s/ Chaim Katzman
AH Investments US, L.P.
By: AH Holdings US, Inc.
its General Partner
By: /s/ Steven Glusband
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Schedule I
Name and address of Purchaser Maximum Amount of Shares
----------------------------- ------------------------
Silver Maple (2001), Inc. 1,036,650
M.G.N. (USA), Inc. 4,284,820
AH Investements US, L.P. 1,589,530
---------
Total 6,911,000
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Annex 1
EQUITY ONE, INC.
COMPANY SCHEDULE OF EXCEPTIONS
Pursuant to Section 3 of the Common Stock Purchase Agreement (the
"Agreement") dated as of October 28, 2002, by and between the Company and the
Purchasers, the Company hereby delivers this Schedule of Exceptions to the
representations and warranties of the Company given in the Agreement. Each
section number in this Schedule of Exceptions corresponds to the section numbers
in the Agreement; however, any information disclosed herein under any section
number shall be deemed to be disclosed and incorporated in any other section
number of the Agreement where such disclosure would be appropriate. Any
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Agreement.
Section 3.2: Stockholder approval is required pursuant to New York Stock
Exchange rules.
Section 3.3: Each of the Company's mortgage loans is secured by a mortgage
on one or more of the Company's properties. Certain of the mortgage loans
involving an aggregate principal balance of approximately $79.3 million on June
30, 2002, contain prohibitions on transfers of ownership which may have been
violated by the Company's previous issuances of common stock or in connection
with past acquisitions and may be violated by transactions involving the
Company's capital stock in the future. If a violation were established, it could
serve as a basis for a lender to accelerate amounts due under the affected
mortgage. To date, no lender has notified the Company that it intends to
accelerate its mortgage. Nevertheless, the Company is in the process of
obtaining the necessary consents from the lenders. Based on discussions with the
remaining lenders, current credit market conditions and other factors, the
Company believes that such consents will be obtained or that the mortgages would
not be accelerated. Accordingly, the Company believes that the ultimate outcome
of this matter will not have a material adverse impact on the Company's results
of operations or financial condition.